Tanana Corporations Pty Ltd v Bayside Council [2022] NSWLEC 1508

Tanana Corporations Pty Ltd v Bayside Council [2022] NSWLEC 1508

The Commissioner was satisfied that the agreed modification of Development Consent No. DA-2008/187 met the relevant jurisdictional prerequisites under s 4.55 of the Environmental Planning and Assessment Act 1979, including minimal environmental impact, substantially the same development, notification and consideration of submissions, consideration of relevant s 4.15 matters and reasons for the original consent, and that s 4.70 permitted modification notwithstanding the current prohibition. Because the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings...

Jurisdiction
Australia
Judgment Date
20 September 2022
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement as to Orders
Outcome
Appeal upheld; Development Consent No. DA-2008/187 modified.
Legal Topics
['modification of Development Consent' 'minimal Environmental Impact' 'substantially the Same Development' 'existing Use Rights' 'conciliation Agreement Orders']
['environmental Planning and Assessment' 'land and Environment' 'development Appeals'] ['modification of Development Consent' 'minimal Environmental Impact' 'substantially the Same Development' 'existing Use Rights' 'conciliation Agreement Orders']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement as to Orders

Legal Issues

  1. 1 ['Whether the proposed modification to Development Consent No. DA-2008/187 satisfied the jurisdictional prerequisites in s 4.55 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed modification was of minimal environmental impact.' 'Whether the development as modified was substantially the same development as originally consented to.' 'Whether the Court could modify the consent notwithstanding that the use was prohibited under the applicable planning instrument because of existing consents saved by s 4.70 of the Environmental Planning and Assessment Act 1979.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The Commissioner was satisfied that the agreed modification of Development Consent No. DA-2008/187 met the relevant jurisdictional prerequisites under s 4.55 of the Environmental Planning and Assessment Act 1979, including minimal environmental impact, substantially the same development, notification and consideration of submissions, consideration of relevant s 4.15 matters and reasons for the original consent, and that s 4.70 permitted modification notwithstanding the current prohibition. Because the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings...

Court Disposition

Appeal upheld; Development Consent No. DA-2008/187 modified.

Orders

  • ['The appeal is upheld.' 'Development Consent No. DA-2008/187 is modified in the terms in Annexure A.' 'Development Consent No. DA-2008/187 as modified by the Court is Annexure B.']